Why Merrick Garland’s 'silence' may fuel the 'malignant persistence of right-wing extremism': columnist

19 April 2023

United States Attorney General Merrick Garland has managed to appear neutral while presiding over cases throughout his decades-long legal career, and that hasn't changed as he directs former President Donald Trump's Jan. 6 investigation.

Columnist Jeffrey Toobin argues in a New York Times op-ed that Garland's neutrality, which often translates as silence, could lead to and validate right-wing extremism.

"We follow the facts and the law wherever they lead," Garland has said at the Department of Justice podium, referring to how he approaches cases. "The best way to undermine an investigation is to say things out of court," he said.

In his op-ed, Toobin references Garland's first major case — the 1995 arraignment of Timothy McVeigh, who perpetrated the Oklahoma City bombing, along with Terry Nichols — which was the largest U.S. terrorist attack prior to the September 11, 2001 attack.

The attorney general was nominated by then-President Bill Clinton to sit on the United States Court of Appeals for the District of Columbia Circuit, which Toobin notes is "the second most important court in the country," in 1995, although not confirmed until 1997.

Toobin adds, "Mr. Garland's tenure as a judge reinforced the tendencies he established in the bombing investigation: meticulous about assembling facts and reluctant about expressing views."

The columnist writes:

Mr. Garland appears to see the courtroom — and the law — as an almost sacred refuge from the tumult of modern life. The law, he believes, must be protected from not just the vulgarities of show business but also the passions of politics. This is why he has proceeded with such caution in the Trump investigation and especially why he has said so little about it in public.

He continues, "There is much to be commended in this kind of reticence, because it projects fairness and even-handedness. But there is a cost, too, in Mr. Garland's approach. As attorney general, Mr. Garland is responsible not just for bringing cases but also for warning the public of ongoing threats, including from political actors like Mr. Trump and his allies. The question is whether Mr. Garland ’s silence protects the law but also misses the chance to defend democracy."

Despite Garland's approach to the law, Toobin argues, "Government officials, especially high level policymakers like the attorney general, are allowed to speak publicly about the meaning and importance of their work, including the continuing threat of homegrown violence. (In my interview with him, Mr. Garland not only refused to draw any comparisons between Mr. McVeigh and the Capitol rioters but also refused even to utter the words 'January 6.')"

Toobin writes:

It may seem that Mr. Garland is simply taking the high road and letting his department do all its talking in the courtroom. That's clearly the message he drew from his experience a quarter-century ago. But there's another lesson to be drawn from the Oklahoma City bombing, about the malignant persistence of right-wing extremism in the United States.

The convictions of Mr. McVeigh and Mr. Nichols did nothing to stop their heirs. Public attention and vigilance are just as important. Mr. Garland, of all people, knows what happens when the threat is neglected or ignored.

In his critical role, Toobin argues Garland "is responsible not just for bringing cases but also for warning the public of ongoing threats, including from political actors like Mr. Trump and his allies. The question is whether Mr. Garland's silence protects the law but also misses the chance to defend democracy."

Jeffrey Toobin's full op-ed is available at this link (subscription required).

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